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holding that the moving party bears the burden of proving a defendant's competency
Summary of this case from United States v. RaiolaOpinion
Case No: 6:15-cr-3-Orl-22TBS Case No: 6:10-cr-238-Orl-22TBS
01-14-2016
UNITED STATES OF AMERICA, v. FNU LNU, a/k/a Vaughn Johnson, a/k/a Juan Antonio Johnson.
ORDER
This cause comes before the Court on a Sealed Report and Recommendation (the "R&R") (Doc. No. 72), entered by the Magistrate Judge after conducting an evidentiary hearing to determine Defendant's competency to stand trial, held on September 23, 2015, pursuant to 18 U.S.C. § 4241. After an independent de novo review of the record in this matter, including Defendant FNU LNU, a/k/a/ Vaughn Johnson, a/k/a Juan Antonio Johnson's ("Defendant") objection, (Doc. No. 84), and the United States of America's (the "Government") response thereto, (Doc. No. 88), the Court agrees entirely with the findings of fact and conclusions of law in the R & R.
I. BACKGROUND
On June 2, 2011, Defendant pled guilty to making a false statement on a passport and was sentenced to twenty months incarceration to be followed by thirty-six months of supervised release. Case No. 6:10-cr-238-Orl-22KRS. While on supervised release, Defendant again made a false statement in an application for a passport. Case No. 6:15-cr-3-Orl-22TBS. In the current action, Defendant is charged with violating the conditions of his supervised release, and with a new criminal charge for again making a false statement on a passport. Id. On September 23, 2015, the Magistrate Judge held an evidentiary hearing to determine Defendant's competency to stand trial. (Doc. No. 81). At the evidentiary hearing, the Magistrate Judge heard testimony from two experts. (Id.) Both experts had the opportunity to test and evaluate Defendant. The defense expert, Jacqueline Olander, Ph.D., ("Dr. Olander"), is a licensed clinical neuropsychologist. (Id. at pp. 75-76). While in the custody of the Attorney General, Defendant was transported to the Bureau of Prisons ("BOP") Federal Detention Center in Miami, Florida, where he was examined and evaluated by a second expert, Rodolfo Buigas, who holds a Ph.D. in clinical psychology and has specialized training in neuropsychology. (Id. at pp. 5-6).
The Magistrate Judge recommended that this Court find Defendant competent to stand trial. (Doc. No. 72 at p. 2). In arriving at that conclusion, the Magistrate Judge first found that both experts agree that Defendant has a rational and factual understanding of the criminal proceedings against him. (Id. at p. 12). The Magistrate Judge emphasized that both experts agree Defendant has a neurocognitive disorder; however, they disagree as to its severity. (Id.) Ultimately, the Magistrate Judge determined that Dr. Olander is unable to support her vague diagnosis of an unspecified dementia, and that she did not satisfy the two requirements for diagnosing dementia set forth in the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"). (Id.) Additionally, the Magistrate Judge found that Dr. Olander's opinions were unsupported by concrete medical evidence. (Id. at pp. 12-14). Based on both experts' opinions, the Magistrate Judge found that Defendant has difficulty relating information about his past. (Id. at p. 14). However, Dr. Olander's diagnosis of dementia, which she hypothesized was caused by meningitis, amounted only to an "approximation based upon data that is insufficient to support her conclusion." (Id.) Therefore, the Magistrate Judge reasoned that Dr. Olander's unspecified diagnosis was not sufficient to show by a preponderance of the evidence that Defendant suffers from a form of dementia that causes him to confuse his actual memories with his imagination. (Id.) As a result, the Magistrate Judge recommended that Defendant was competent to stand trial. (Id. at p. 2).
II. LEGAL STANDARDS
A. Review of the R&R
The district court reviews a magistrate judge's report and recommendation in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Criminal Procedure 59. After conducting a careful and complete review of the findings and recommendations issued by a magistrate judge, the district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3); see also Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed. 2d 964 (1983). A party wishing to object to such recommendations by a magistrate judge must "file specific written objections," and the "[f]ailure to object in accordance with this rule waives a party's right to review." Fed. R. Crim. P. 59(b)(2). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also, Fed. R. Crim. P. 59(b)(3); United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed. 2d 424 (1980). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citations omitted).
B. Mental Competency Determination
The Due Process Clause of the Fourteenth Amendment prohibits the trial and conviction of mentally incompetent defendants. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995). A defendant is not competent to stand trial if he is "suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(a). In determining a defendant's competency, the inquiry is "whether [a defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960). The court must find by a preponderance of the evidence that a defendant is mentally incompetent. 18 U.S.C. § 4241(c). "'[N]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.'. . . Similarly, neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial." Medina, 59 F.3d at 1107. In the Eleventh Circuit, the burden is on the defendant. See United States v. Bradley, 644 F.3d 1213, 1267-68 (11th Cir. 2011) ("a petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.").
III. DEFENDANT'S OBJECTIONS
The experts do not disagree that Defendant understands the legal process, the charges against him, and possible punishment if he were convicted of those charges. The parties dispute whether Defendant is able to consult with his lawyer, prepare his defense, and testify relevantly. Defendant's objections can be grouped into two categories: (1) that the Magistrate Judge did not properly apply the burden of proof; and (2) that the Magistrate Judge erred in weighing the evidence. (See Doc. No. 84 at pp. 17, 20, 21).
A. Objection to the Applicable Burden of Proof
Defendant objects to the R&R on the ground that the Magistrate Judge was "preoccupied with the burden of proof." (Doc. No. 84 at p. 21). Defendant argues that it is unclear whether a defendant bears the burden of proving incompetency; therefore, the Magistrate Judge erred in determining that Defendant is competent based on the burden of proof. (Id. at p. 22). To support this proposition, Defendant cites a number of non-binding cases decided in other circuits. (Id. at p. 21). Additionally, Defendant cites to an Eleventh Circuit case, United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006), that states that the burden of proof "arguably" lies with the party moving to determine a defendant's competency, and to a former Fifth Circuit case, United States v. Makris, 535 F.2d 899, 905-06 (5th Cir. 1976), holding that the government bears the burden of proving a defendant is competent to stand trial. (Id. at pp. 21-22). Defendant cites these two cases in support of his argument that it is "not clear" who bears the burden of proving incompetency. (Id.) In response, the Government argues that the Magistrate Judge properly applied the standard of proof by placing the burden on the moving party. (Doc. No. 88 at p. 9). The Government contends that Defendant is citing cases that no longer provide the applicable burden of proof because the more recent Eleventh Circuit decision in Bradley makes clear that the burden is on the moving party. (Id.)
The undersigned Judge agrees with the Magistrate Judge and the Government that the moving party bears the burden of proving a defendant's incompetency. The Government correctly argues that the Eleventh Circuit has clearly stated that the burden is on the person raising the competency issue. Bradley, 644 F.3d at 1268. "While earlier precedent tends to the contrary, see United States v. Makris, 535 F.2d 899, 905-06 (5th Cir. 1976), we have since decided that 'a petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.'" Id. (citing Medina, 59 F.3d at 1106). Since the Eleventh Circuit's decision in Bradley, courts have recognized that the movant has the burden of proving incompetency by a preponderance of the evidence and enjoys no presumption of incompetency. See e.g., United States v. Fuenmayor-Arevalo, 490 F. App'x 217, 225 (11th Cir. 2012) ("A defendant must demonstrate his incompetency by a preponderance of the evidence."); United States v. Smith, No. 1:10-CR-0102-TCB-JFK, 2011 WL 6960977, at *8 (N.D. Ga. Dec. 13, 2011), report and recommendation adopted, No. 1:10-CR-102-TCB, 2012 WL 34078 (N.D. Ga. Jan. 6, 2012) ("the court finds that Defendant has failed to establish by a preponderance of the evidence that he lacks a 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and [that] he [lacks] a rational as well as factual understanding of the proceedings against him.'"). Therefore, the Magistrate Judge properly applied the burden of proof when it required the moving party, Defendant, to prove incompetency by a preponderance of the evidence. (Doc. No. 72 at p. 14).
Unpublished Eleventh Circuit opinions are persuasive but not binding authority.
B. Objection to the Magistrate Judge's Weighing of the Evidence
Defendant's first evidentiary-based objection is that the Magistrate Judge failed to give proper weight to the information suggesting that Defendant is incapable of assisting in his defense because of his "striking inability" to convey historical facts accurately. (Doc. No. 84 at p. 17). In Dr. Olander's opinion, Defendant suffers from "confabulation," a finding that is not disputed by Dr. Buigas. (Id. at p. 18). Therefore, according to Defendant, it is "unrebutted" that Defendant's "confabulation" condition renders him incompetent to stand trial. (Id.) The Defendant argues that the Magistrate Judge gave too little weight to this "unrebutted" evidence of "confabulation." (Id. at p. 21). In response, the Government contends that the Magistrate Judge gave proper weight to the evidence in this case. (Doc. No. 88 at p. 9). The Government argues that the weight of the evidence is sufficient to demonstrate that Defendant is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense. (Id. at p. 13). The Government emphasizes that Dr. Olander failed to administer tests related to Defendant's competency or ability to work with his defense counsel. (Id.) In contrast, Dr. Buigas did administer these tests. (Id.) Ultimately, the Government contends that Defendant has a difficult personality, but he is capable of assisting in his defense. (Id.)
The tests are the "Inventory of Legal Knowledge" ("ILK") that measures personality and psychiatric characteristics; the "Georgia Court Competency Test" ("GCCT") that measures legal knowledge and abilities related to trial competency; and the "Evaluation of Competency to Stand Trial-Revised" ("ECST-R") that measures legal knowledge and abilities related to trial competency. (Doc. No. 88 at pp. 4, 13). --------
Second, Defendant argues that Dr. Olander is the better-qualified expert because she administered more comprehensive tests than the BOP's expert, Dr. Buigas. (Doc. No. 84 at pp. 18-19). Defendant contends that the Magistrate Judge gave too much weight to Dr. Buigas's opinion. (Id. at p. 18). The Government disagrees, reasoning that Defendant's argument that Dr. Olander is a more qualified expert is groundless because the Magistrate Judge found that both Dr. Olander and Dr. Buigas were qualified experts. (Doc. No. 88 at p. 14). Third, Defendant objects to the Magistrate Judge's determination that the absence of historical evidence to support Dr. Olander's diagnosis of a major neurological condition is evidence that Defendant does not suffer from a neurological condition. (Doc. No. 84 at p. 20). Defendant contends that the Magistrate Judge should not have precluded a finding of incompetency based solely on Dr. Olander's inability to pinpoint the origins of the dementia diagnosis because the important consideration is the effect of the condition on Defendant's competency rather than its origin. (Id. at p. 21). In support of Defendant's contention that there is ample evidence for Dr. Olander's diagnosis, Defendant emphasizes that it is undisputed that Defendant has an IQ of 70, and that there is unrebutted evidence of confabulation. (Id.)
The Court has read and reviewed the experts' reports and the transcript of the evidentiary hearing on Defendant's competency held before the Magistrate Judge on September 23, 2015. After careful consideration of the record and the R&R, the Court accepts and adopts the Magistrate Judge's findings in its entirety. The Court agrees with the Magistrate Judge's weighing of the evidence and there is no need for an additional hearing. The Court disagrees with Defendant that the Magistrate Judge did not give proper weight to Dr. Olander's opinion. See Bradley, 644 F.3d at 1268 ("[F]aced with diametrically opposite expert testimony, a district court does not clearly err simply by crediting one opinion over another where other record evidence exists to support the conclusion.") (citations and internal quotation marks omitted). Notably, the bulk of Defendant's objections are merely based on his disagreement with the Magistrate Judge's consideration of the evidence.
Aside from his disagreement, Defendant cites no authority to support his objections. The Magistrate Judge's thorough discussion of the experts' opinions in the R&R makes it clear that the Magistrate Judge paid careful attention to both experts' opinions and ultimate diagnoses. (Doc. No. 72 at pp. 3-14). Defendant's objection that the Magistrate Judge gave too much weight to Dr. Buigas's opinion is simply misplaced. Quite the contrary, the Magistrate Judge focused on Dr. Olander's opinion. Specifically, the Magistrate Judge detailed the reasons that Dr. Olander's general diagnosis of dementia was insufficient to prove that Defendant was incompetent to stand trial. (Id. at pp. 13-14). First, Dr. Olander did not base her opinion on medical information or medical records. (Id. at p. 13). Second, without any medical corroboration, Dr. Olander hypothesized that Defendant may have had meningitis and this may have damaged his brain. (Id.) The Magistrate Judge emphasized that neither Dr. Olander nor Dr. Buigas performed extensive tests of Defendant's memory. (Id. at p. 12). Ultimately, the Magistrate Judge concluded that hypothetical approximations are insufficient to support a determination of incompetency. (Id. at p. 13).
Lastly, Defendant is incorrect that the Magistrate Judge did not give proper weight to the "unrebutted" evidence of confabulation. First, the evidence is not unrebutted; the experts simply disagree as to the severity of Defendant's memory disturbance. Second, for the reasons stated above, the undersigned Judge has concluded that the Magistrate Judge properly, and carefully, considered this evidence. Therefore, the undersigned Judge agrees with the Magistrate Judge that Defendant did not prove his incompetence by a preponderance of the evidence because the defense expert's opinion that Defendant suffers from an unspecified diagnosis of dementia is merely based on an approximation.
IV. CONCLUSION
Based on the foregoing, it is ORDERED as follows:
1. The Sealed Report and Recommendation entered November 2, 2015 (Doc. No. 72) is ADOPTED and CONFIRMED and made a part of this Order.
2. Defendant's Objection to the Magistrate Judge's Sealed Report and Recommendation, filed on December 17, 2015 (Doc. No. 84), is OVERRULED.
3. Defendant SHALL personally appear before this Court for trial scheduled on February 1, 2016, at 9:30 AM, at the George C. Young U.S. Courthouse & Federal Building, 401 W. Central Boulevard, Sixth Floor, Courtroom 6A, Orlando, Florida, 32801.
DONE and ORDERED in Chambers, Orlando, Florida on January 14, 2016.
/s/_________
ANNE C. CONWAY
United States District Judge Copies furnished to: Counsel of Record
United States Magistrate Judge
United States Marshals Service
United States Probation Office
Courtroom Deputy
FNU LNU, a/k/a/ Vaughn Johnson, a/k/a Juan Antonio Johnson